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Denial of flexible working request costs estate agent £185,000

Prior to resigning in December 2019, Ms Thompson worked as a sales manager at the London based Manors estate agents. She was, at the time, earning an annual salary of £120,000 and worked five days a week, finishing at 6pm each day in accordance with the usual office hours.

Ms Thompson fell pregnant and upon her return from maternity leave, submitted a flexible working request, which essentially included requests to alter her finishing time to 5pm in order to pick up her child from nursery, which closed at 6pm, as well as a reduction to working four days a week.

The owner and director of Manors, Paul Sellar, ultimately denied Ms Thompson’s flexible working request. As a result, Ms Thompson felt that she had no choice but to resign and subsequently launched various claims in the Employment Tribunal. Were any of Ms Thompson’s claims successful?

Ms A. Thompson v Scancrown Ltd, trading as Manors

The claimant, Ms Thompson, was previously employed by Manors, the respondent, as a sales manager in a small independent estate agent. Manors is based in a single office in London with around 10 employees. The Tribunal heard that although there is some walk-in trade, many of its clients are based overseas and communicate by email.

Ms Thompson’s employment with Manors commenced in October 2016, working from 9am until 6pm, Monday to Friday.

It is largely accepted that Ms Thompson was very successful in driving the estate agents’ sales income and indeed, Mr Sellar, the director, verbally praised Ms Thompson in spring 2018, commenting that the office’s success was down to Ms Thompson. At this same time, Ms Thompson became pregnant and began maternity leave in October 2018, prior to giving birth in November 2018.

The claimant met with Mr Sellar in August 2019 to raise her flexible working request as part of a general discussion about her proposed return to work in October 2019. In addition to a request to work four days a week and finishing work at 5pm, various options were proposed by Ms Thompson, including the possibility of using up accrued annual leave one day a week in order to facilitate a four-day working week, or alternatively, using the accrued leave all at once at the end of maternity leave.

Various correspondence followed in the aftermath of this meeting, while Ms Thompson also around this period instructed solicitors. Mr Sellar had stated to Ms Thompson that she had to submit a formal flexible working request. A formal grievance was lodged by Ms Thompson on 10 October 2019. Acas was asked to commence early conciliation on 15 October. A grievance hearing was held on 28 October. A meeting to discuss the flexible working request was held on 15 November. A letter was sent on 25 November by Manors to Ms Thompson rejecting her flexible working request. After both the grievance and her formal application for flexible working were rejected as well as an unsuccessful appeals process, Ms Thompson resigned in December 2019.

Ms Thompson brought various claims against Manors, including a claim of discrimination related to pregnancy or maternity leave, a claim of harassment related to pregnancy and maternity, an unauthorised deductions claim related to referral fees, an unfair dismissal claim and finally, a claim of indirect sex discrimination.

Decision

The Employment Tribunal found that Ms Thompson was subjected to indirect sex discrimination by Manors. It was acknowledged by the Employment Tribunal, on the basis of Ms Thompson’s arguments, that despite “an encouraging shift in societal attitudes … mothers are more likely to carry primary [childcare arrangement] responsibility than fathers.” Furthermore, the Tribunal remarked that Manors failed to show “that refusal of the proposed reduction in hours of work was proportionate to the real need of the business to maintain successful relations with customers”. All other claims submitted by Ms Thompson failed.

At a later remedy judgment hearing, the Employment Tribunal ordered Manors to compensate Ms Thompson the amount of £184,961.32 for the indirect sex discrimination claim. This awarded sum comprised of interest, past and future loss of income and pension contributions, and injury to feelings. Commenting on its reasoning for awarding the latter, the Employment Tribunal said that Ms Thompson “resented that flexible working appeared not to be considered properly (as in [the Tribunal’s] finding it was not), and felt that this was an injustice because of her sex, which it was. Most mothers find that they have difficult feelings returning to work after maternity even when it is a return to a familiar job. The claimant’s turmoil will have been worse because she had to start from scratch finding a job at all.”

Comment

This case serves as a reminder that employers should reasonably consider their employees’ flexible working requests. Employers should be aware that, as long as they have 26 weeks’ continuous service, employees have a statutory right to make a flexible working request for any reason.

The judgment emphasises that employers should consider an employee’s flexible working request in an appropriate and reasonable manner, and not unreasonably refuse to engage with employees to reach a mutual solution where circumstances allow. Here, the Employment Tribunal invited Manors to undertake a methodical approach to explain why it could not accept or entertain the prospect of Ms Thompson’s initial flexible working request, and subsequent offer to explore mutually beneficial arrangements, but Manors failed to provide a sufficient explanation for its thought process at the time of the refusing the request.

If you have any queries relating to handling flexible working requests in the context of returning from maternity leave, childcare arrangements or any other context, or you have any other Employment Law or HR queries, please do not hesitate to contact our Employment team on 01228 552600 or 01524 548494.

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